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New FOI legislation to cover 70 more bodies

The Central Bank of Ireland, NAMA and An Garda Siochana are among many additional bodies that will be opened to scrutiny under proposed new Freedom of Information legislation.

The Freedom of Information Bill 2012 is one of the Government’s legislative priorities for this year.

The current Freedom of Information Acts give people a right of access to records held by many public bodies, including Government Departments, the HSE and Local Authorities.

While the current Freedom of Information Acts lists each of the bodies to which the Acts apply, the new Bill contains a general definition to capture all public bodies. It also contains a provision which allows other bodies in receipt of significant funding from the State to be included by way of Ministerial Order. In the event of a dispute arising as to whether a body comes within the remit of the Acts, the dispute shall be submitted to the Minster for Public Expenditure and Reform, whose determination shall be binding.

The Central Bank of Ireland is one body which, it is proposed, will be newly subject to the legislation. However, the legislation will apply to the Central Bank only in so far is the records are not subject to professional secrecy obligations under the European System of Central Banks (the “ESCB”) Statute or EU Financial Services Directives.

A decision of the European Central Bank dated 4 March 2004 (ECB/2004/3) provides guidance on the type of information to which professional secrecy obligations attach and includes information, the disclosure of which “would undermine the protection of:

the commercial interests of a natural or legal person, including intellectual property,

court proceedings and legal advice,

the purpose of inspections, investigations and audits.”

In addition, “access to a document containing opinions for internal use as part of deliberations and preliminary consultations with the ECB or national central bank shall be refused even after the decision has been taken, unless there is an overriding public interest in disclosure.”

The proposed legislation is therefore likely to have a minimal impact on the manner in which financial institutions deal with the Central Bank.

Although the Bill is a government priority, the Information Commissioner has said that her office is currently operating with a severe backlog of complaints and will be unable to cope if additional public bodies are added to those already subject to the Freedom of Information Acts. It remains to be seen whether the proposed amendments will have a significant impact in the absence of additional resources.

Please click here for a link to the Freedom of Information Bill 2012 Draft General Scheme.

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